SC ‘open’ hearing in 377 case

OUR LEGAL CORRESPONDENT

New Delhi, April 22: The Supreme Court today gave pro-gay activists a morale booster by agreeing to an open hearing of an NGO’s curative petition against an earlier judgment that had re-criminalised gay sex.

A four-judge bench headed by Chief Justice P. Sathasivam conceded Naz Foundation’s plea and listed the matter for hearing in an open court next week.

Review petitions and curative petitions, which are filed after the dismissal of the original writ petitions, are usually heard behind closed doors in the judges’ chambers unlike other petitions that are heard in public.

The apex court today agreed to make a departure from practice considering the importance of the matter, which has kicked off a nationwide debate on gay rights.

“List in the court next week,” was the terse order passed by the bench, which included Justices R.M. Lodha, H.L. Dattu and S.J. Mukhopadhaya.

At the heart of the case lies Section 377 of the Indian Penal Code, a 153-year-old colonial law that criminalises all “sex against the order of nature”, including gay sex. It was handed down by India’s then British rulers who have now legalised gay sex — even gay marriages — in their own country.

On July 2, 2009, Delhi High Court had de-criminalised all private sexual acts between consenting adults, striking down certain provisions of Section 377 as unconstitutional. But on December 11, 2013, the apex court re-criminalised gay sex, saying offenders can be jailed between 10 years and life.

It dismissed a review petition in January, after which the curative petition was filed. A review petition is heard by the same bench that passed the original verdict but two or three additional judges are drafted in to hear a curative petition.

Like review petitions, curative petitions have a near cent per cent failure rate. But gay rights activists’ hopes have been raised by the recent relief to Khalistani terrorist Devinder Pal Singh Bhullar, whose death sentence was commuted on a curative petition.

Petitioner Naz has urged the apex court to consider the April 15 judgment by another bench that granted “third gender” status and reservation rights to transgender people and suggested repeal of the “criminal provisions” prohibiting consensual gay sex among adults.

Pro-gay activists hope the judgment would have a positive effect on cases such as their battle against Section 377.

The curative petition also cites how last year’s Criminal Law (Amendment) Act makes “penile, non-vaginal sexual acts, between man and woman, without consent an offence”.

This implies, Naz says, that such consensual acts are no longer prohibited, thereby overriding the blanket ban on “unnatural sex” as imposed by Section 377.

While re-criminalising gay sex, the apex court had said the Centre was free to have Section 377 revoked in Parliament if it wanted.

A divided government — its home ministry in favour of Section 377 and its health ministry against it — has avoided taking a clear stand on the politically sensitive issue.

Sonia and Rahul Gandhi and a few ministers, however, had expressed disappointment at the December apex court judgment re-criminalising gay sex. The BJP stays strongly opposed to gay sex, as do many religious bodies and leaders from across faiths.